Medical boards are gatekeeping abortion access

The Supreme Court, on April 30, disagreed with an appeal by a medical board, and permitted a 15-year-old girl in her third trimester to terminate her pregnancy. This was the second such case this year alone where the Delhi-based All India Institute of Medical Sciences (AIIMS) has argued for the rights of the foetus. However, the court was informed in a hearing on May 4 that the minor child gave birth to a baby boy on May 2.

The 15-year-old had become pregnant, the petition said, as a result of a consensual relationship with a 17-year-old boy. The Supreme Court bench comprising Justices B.V. Nagarathna and Ujjal Bhuyan overruled the Delhi High Court and permitted termination in an order on April 24, which was then challenged by the All India Institute of Medical Sciences (AIIMS) seeking protection for an “unborn child”.

Under Indian laws, an unborn child is not considered as a full legal person, though it does have certain rights and protections in a limited context. The rights to a foetus are extended through the mother. Thus, a woman, and not the foetus, is the patient, medical and legal experts explained.

India’s 2021 amendment to the Medical Termination of Pregnancy (MTP) Act expanded access to safe abortion by increasing the gestational limit from 20 to 24 weeks for special categories of women, including rape survivors, minors, and women with disabilities and also mandated the establishment of state-level medical boards to evaluate complex cases. However, experts say abortion in India continues to remain a “permission-based” privilege as opposed to a fundamental right. 

A 2025 report, which studied 1,114 cases in the Supreme Court and the high courts between 2019 and 2024, revealed that permission for termination was given in 85% of the cases, whereas, in 949 cases the courts deferred to the opinion of a medical board, effectively turning medical professionals into the final arbiter of constitutional rights. 

Doctors and legal experts point out that this is a dangerous trend because the choice for abortion is taken away from a woman and entrusted to a third-party.

Chief Justice of India Surya Kant’s refusal to entertain a curative plea filed by AIIMS—against its decision allowing a minor to terminate her late-term pregnancy and placing emphasis on a woman’s reproductive right—is therefore a rare instance where the courts have gone against advice given by medical boards.

The court observed on April 24 that burdening a woman with an “unwanted” pregnancy violated her fundamental right to reproductive autonomy under Article 21.

The courtroom clinic

Sneha Mukherjee, clinical assistant professor of law at Jindal Global Law School, recalled a 2016 case where the Supreme Court constituted a medical board as an ad hoc measure for the first time to help it decide on the safety of a late-term abortion for a mother, seeking medical expertise in an advisory capacity.

“The court, after getting advice from the medical board, allowed the abortion because it was a case of severe foetal anomaly and the viability of the foetus was low,” Mukherjee said. 

Since then, the courts constituted several such medical boards in MTP cases till it was codified in the 2021 amendment. Cases that involve pregnancies beyond 24 weeks are referred to medical boards directly.

Mukherjee said advocates and the women’s rights’ movement as a whole are generally opposed to the medical boards which were introduced as an “ad hoc” measure. However, their opinions on “foetal viability” and the championing for the rights of an “unborn child” is a new trend not found in law. 

A 2025 report by the Centre of Health Equity, Law and Policy (C-HELP) revealed that constitutional courts relied on the opinion of the medical boards in 949 cases. Rape was the most frequent reason for seeking court-authorised terminations—about 52% pleas were by survivors who were minors, and 9.5% were by adult survivors of rape. Nearly a third of the cases involved a foetus with “significant foetal anomaly”.

Permission vs rights

Legal experts say abortion laws in India were never a right to begin with. “It was a very permission-based and provider-centric legislation,” Mukherjee said. “It is not a protection of women’s rights, rather, a qualified right to seek abortion under very limited and narrow circumstances.”

Anima Anjuri, a research fellow and one of the authors of the C-HELP report, said the nature of MTP cases in courts also changed over time. At first, abortion petitions in cases of foetal anomalies dominated the trend, but abortion pleas on other grounds are also increasing, she added.

In some instances, Anjuri said, the courts recognised a woman’s right to bodily autonomy and expanded reproductive rights. In others, relief was denied based on “arbitrary readings of gestational limits, foetal viability, or moral judgments”. This, the report said, has led to “unequal outcomes for similarly situated petitioners and undermined the constitutional promise of substantive equality”.

Nikhil Datar, a Mumbai-based obstetrician and gynecologist, had challenged the original 1971 MTP Act, the 2021 amendment and the rules in the Supreme Court. Datar said the “shoddy drafting” of the abortion law itself is “problematic” and that the creation of medical boards not only violates fundamental rights but is also “another layer of paternalism whereby the law wants doctors to also be the legal gate keepers besides being medical advisors”. 

The members on the board, constituting one gynaecologist, one paediatrician, one radiologist and any other specialist as the case is required to have, do not fulfill the qualifications of a Registered Medical Practitioner (RMP) allowed to conduct medical termination of pregnancies as outlined in the Act, he added.

“Imagine a situation where you have created a board to decide whether to do MTP or not. But the majority members on the board, have never conducted a MTP procedure, get to decide on whether they can permit abortion or not,” Datar said. Further, he added, medical practitioners on the board are also not trained in the legalities and as such have a poor understanding of the scope of the Act. 

“In such cases, when the board is tasked with making a decision, the members rely on personal instinct, experience and beliefs to decide a case,” Datar said. He recounted a recent experience where a medical board denied termination as they had a wrong interpretation of the law. This, he concluded, could possibly answer for the inconclusiveness of the decisions even when the facts of the medical cases remain the same.

Medical boards as gatekeepers

Research fellow Anima Anjuri’s report said though courts deferred to the advice of the medical boards and permitted termination of pregnancy in 85% of the cases, abortion in India remains a medical permission rather than a reproductive right. 

Of the 11% cases where permission to terminate a pregnancy was denied, 81.5% relied on the opinion of a medical board.

There is no fixed understanding of what constitutes ‘significant’ or ‘severe’ foetal abnormality, the report said. “[W]hile the MTP Act makes a special case for allowing abortion on the grounds of abnormality in the foetus, it keeps the choice away from the pregnant woman and vests it with Medical Boards,” it added. “Further, though statutorily required to take account of a pregnant woman’s actual or reasonably foreseeable environment for determining whether the continuance of pregnancy involves risk of injury to the health of the woman, Medical Boards and the courts often fail to do so.

Datar said that in his case before the Supreme Court in 2017, the Government of India had submitted a detailed Government Resolution (GR). This document identified over 80 foetal abnormalities as constituting “substantial abnormalities” and laid down a structured framework for the termination of late pregnancies. It offered a clear and objective guideline for both clinicians and courts. But the rules framed following the amendment have not incorporated these detailed recommendations.

Viability of a foetus not a valid argument

Datar said the medical board’s insistence on the protection of a “viable foetus” is problematic.

Medically, a viable foetus can mean a higher chance of a child being born healthy. Abnormality in a foetus could mean anything from detection of minor disabilities to severe cases where the survival of a child after birth is low. “These are medical cases, and medical decisions. The question of rights and the law is completely different,” Datar said.

Senior advocate Colin Gonsalves said there are precedents in the United Kingdom and the European Union where viability of a foetus is not a factor or an impediment while deciding abortion cases. They conduct medical procedures to ensure viability of a foetus is put at an end even in late-term or full term pregnancies, Gonsalves said. 

“There's no technological impediment for a woman to exercise her right over her body,” he added.

Gonsalves said personhood begins at birth. A foetus in the womb has no rights. “A woman's right over her own body is absolute, subject to only one condition that she cannot cause harm to her own body,” Gonsalves said.

“If there is no harm caused, she has an absolute right to decide on an abortion and nobody, not the government, not the medical board, nobody can actually overwrite that decision of a woman,” he said. “Once this basic principle is clear that a woman's right over her own body is absolute, everybody's opinion, including the opinion of the medical board, is irrelevant,” the senior advocate said.

Society and women are ok with abortion, Gonsalves said. This can be seen when women go underground and get back-alley abortions when they cannot get relief legally, he added.

IndiaSpend reached out to the ministries of law, women and child development, and health for comment. We will update this story when we receive a response.

This story is republished with permission from IndiaSpend, a data-driven, public-interest journalism non-profit. It has been lightly edited for style and clarity.

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